Proby v. State

• Citation: 582 S.W.3d 170
• Decision Date: 05 September 2019
• Docket Number: No. SD 35831,SD 35831
• Parties: Joseph Willie PROBY, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Court of Appeal of Missouri (US)

582 S.W.3d 170

Joseph Willie PROBY, Movant-Appellant,

v.STATE of Missouri, Respondent-Respondent.

No. SD 35831

Missouri Court of Appeals, Southern District, Division One.

Filed: September 5, 2019

Appellant’s Attorney: Nina McDonnell, of St. Louis, Missouri.

Respondent’s Attorneys: Eric S. Schmitt, Attorney General, and Shaun J. Mackelprang, Assistant Attorney General, of Jefferson City, Missouri.

WILLIAM W. FRANCIS, JR., J.

Joseph Willie Proby ("Proby") appeals from a judgment of the motion court denying his Rule 29.15¹ motion to set aside his convictions of four counts of burglary, and four counts of felony stealing (third offense). Because the motion court’s decision to deny relief was not clearly erroneous, we affirm.

Factual and Procedural Background

We recite the evidence in accord with the motion court’s explicit and implicit determinations, including those regarding credibility. Shockley v. State , No. SC96633, 579 S.W.3d 881, 892–93, 2019 WL 1614593, *3 (Mo. banc 2019). Other information is set forth as necessary for clarity.

In the fall of 2009, Proby was caught stealing food from Walmart. He was apprehended and placed in custody. At that time, Walmart representatives gave Proby a "notice of trespass," indicating that Proby was "no longer permitted on any Walmart property at any time in the future[.]" Proby returned to this Walmart later in 2009, and was caught stealing liquor. He was charged with two counts of misdemeanor stealing, and pled guilty to both charges in January 2010.²

Proby was thereafter caught stealing from the same Walmart on March 26 and 27, 2012, and on July 15 and 28, 2012.

Proby was charged by amended information, in Case No. 12NM-CR01206 (July 15 and 28, 2012 offenses), with two counts of the class B felony of burglary in the first degree³ (Counts I and III); and two counts of the class D felony of "Stealing Related Ofns – 3^rd Ofns Stealing, Buying, Receiving, Robbery"⁴ (Counts II and IV).

In Case No. 12NM-CR01207 (March 26 and 27, 2012 offenses) Proby was charged by third amended information with two counts of the class C felony of burglary in the second degree (amended to the class B felony of burglary in the first degree)⁵ (Counts I and III); and two counts of the class D felony of "Stealing Related Ofns – 3^rd Ofns Stealing, Buying, Receiving, Robbery"⁶ (Counts II and IV).

In both cases, Proby was charged as a prior and persistent offender as he pled guilty to felony stealing on October 1, 1985, and felony second-degree burglary and stealing on May 21, 1991.

The cases were consolidated for purposes of trial, and a jury trial commenced on May 2, 2013. The jury found Proby guilty on all charges.⁷

On direct appeal, this Court affirmed Proby’s convictions and sentences. See State v. Proby , 437 S.W.3d 375 (Mo. App. S.D. 2014). This Court issued its mandate on August 13, 2014.

On October 20, 2014, Proby timely filed his pro se Rule 29.15 motion for post-conviction relief. Counsel was appointed on October 22, 2014, and was granted a 30-day extension to file an amended motion. Proby’s amended motion was timely filed on January 20, 2015. Therein, Proby alleged that his appellate counsel was ineffective for failing to assert that "the State failed to adduce sufficient evidence to support a finding that [he] had committed the crime of stealing, third offense [,]" in that the State’s evidence demonstrated that Proby "was not represented by counsel for [his] prior stealing charges, and thus [his] pleas for those charges could not be counted as ‘stealing-related offenses .’ " (Emphasis in original).

By letter dated March 1, 2018, Proby lodged appellate counsel’s affidavit with the motion court and requested that the motion court take the matter under submission if the State had no evidence to present at a potential motion hearing.⁸ In a hearing on May 2, 2018, Proby’s counsel orally "waive[d] evidentiary hearing and submit[ted] evidence on the record."

On August 30, 2018, the motion court issued its "Findings of Fact and Conclusions of Law," rejecting Proby’s Rule 29.15 motion. The motion court found that appellate counsel was not ineffective for failing to raise an insufficiency-of-the-evidence claim (pursuant to the basis alleged in Proby’s amended motion) because the plain meaning of section 570.040 authorized sentencing enhancement (felony stealing) based on the record before the motion court. This appeal followed.

In one point relied on, Proby argues that the motion court clearly erred in rejecting his Rule 29.15 motion for post-conviction relief, in that appellate counsel "fail[ed] to raise on appeal that the State failed to adduce evidence supporting the charges of felony stealing," and that there was "a reasonable probability that [Proby] would have been convicted of misdemeanor counts of stealing, rather than felony counts of stealing."

Standard of Review

This Court reviews the denial of post-conviction relief to determine whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). A judgment is clearly erroneous when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made. The motion court’s findings are presumed correct. This Court defers to the motion court’s superior opportunity to judge the credibility of witnesses.

To be entitled to post-conviction relief for ineffective assistance of counsel, a movant must show by a preponderance of the evidence his or her trial counsel failed to meet the Strickland test to prove his or her claims. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland , Movant must demonstrate: (1) trial counsel failed to exercise the level of skill and diligence reasonably competent trial counsel would in a similar situation, and (2) he was prejudiced by that failure. Id. at 687.

Movant must overcome the strong presumption trial counsel’s conduct was reasonable and effective. To overcome this presumption, a movant must identify specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance. Trial strategy decisions may be a basis for finding ineffective assistance of counsel only if that decision was unreasonable. Strategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable[.]

To establish relief under Strickland , a movant must prove prejudice. Prejudice occurs when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

Shockley , 579 S.W.3d at 892, 2019 WL 1614593, at *3 (internal quotations and citations omitted).

Analysis

Proby argues that the motion court clearly erred in denying his Rule 29.15 motion for post-conviction relief in that "appellate counsel was ineffective for failing to raise on appeal that the State failed to adduce evidence supporting the charges of felony stealing[.]" He posits that "[b]ut for appellate counsel’s ineffective assistance, there is a reasonable probability that [Proby] would have been convicted of misdemeanor counts of stealing, rather than felony counts of stealing."

It is a movant’s burden to "overcome the strong presumption [that] counsel’s conduct was reasonable and effective." Shockley , 579 S.W.3d at 892, 2019 WL 1614593, at *3. "[A]ppellate counsel cannot be deemed ineffective for failing to raise a nonmeritorious claim." Joyner v. State , 421 S.W.3d 580, 582 (Mo. App. E.D. 2014). Prerequisite to relief, movant must demonstrate that "strong grounds ... exist showing that counsel failed to assert a claim of error which would have required reversal had it been asserted and which was so obvious from the record that a competent and effective lawyer would have recognized it and asserted it ." Brown v. State , 450 S.W.3d 847, 852 (Mo. App. S.D. 2014) (internal quotation and citation omitted) (emphasis added).

Moreover, "[a]ppellate counsel ‘need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal.’ " Lopez v. State , 300 S.W.3d 542, 552 (Mo. App. S.D. 2009) (quoting Smith v. Robbins , 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) ). Failure to raise "an unpreserved claim of error ... will rarely be determined to be ineffective by appellate counsel." Goodwater v. State , 560 S.W.3d 44, 57 (Mo. App. W.D. 2018).

Proby argues that appellate counsel was ineffective for failing to raise the substance of the following claim on direct appeal:

By establishing that [Proby]’s crime of stealing was his third ‘stealing-related offense,’ the State could seek punishment for [Proby] having committed a class D Felony instead of a class A misdemeanor. A ‘stealing-related offense’ is defined by Section 570.040:

[T]he term ‘stealing related offense’ shall include federal and state violations of criminal statutes against stealing, robbery, or buying or receiving stolen property and shall also include municipal ordinances against same if the defendant was either represented by counsel or knowingly waived counsel in writing [.]

RSMo § 570.040.2 [ ] (emphasis added).^[9]

The italicized language of subsection 2 is clear. It contemplates that a municipal stealing-related offense can be counted for enhancement purposes even in cases where the defendant did not have counsel, so long as he knowingly waived counsel in writing. By not adding the counsel-and [sic] waiver clause immediately following the ‘federal and state violations’ language, the legislature necessarily limited the counting of waiver-of-counsel stealing-related offenses only to municipal cases.

Had the legislature meant for the waiver clause to apply to federal and state violations, it would have included a comma after ‘property’ and ‘same.’^[10]

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As written, the exception for an uncounseled plea only

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